73 P. 512 | Utah | 1903
Lead Opinion
This action was commenced in the district court of Sanpete county on November 9, 1901, to recover from the defendant the sum of $290.35 and interest, alleged to be due on an implied contract of indemnity. It was alleged in the complaint, substantially, that, on October 4,1896, at Manti City, Sanpete county, Utah, the defendant constituted and appointed the plaintiff his agent, specially, to go to the city of Payson, Utah county, Utah,and take possession of, and bring to said Manti City, certain goods and chattels upon which the' defendant held a chattel mortgage; that afterwards on the 5th day of October, 1898, at said city of Payson, while he was acting in the capacity of agent for defendant as aforesaid, and at the special instance, request, and direction of defendant, the plaintiff took possession of said chattels and conveyed the same to said Manti City; that then, at Manti City, the defendant ratified the 'taking of the goods and chattels; that at the time they were so taken the plaintiff did not know that such taking was a tort, he acting in good faith as the agent of the defendant, and upon the faith of the representations and assurances of defendant that such taking was lawful and proper; that afterwards one S. S. Johnson instituted suit against the plaintiff in the district court of Utah county, and on the 2d day of March, 1899, recovered judgment against the plaintiff for the sum of $300, besides costs of suit, amounting to $13.90, all of which damages and costs were collected from him; that in addition thereto plaintiff was compelled to, and did, pay
"We will, in the first instance, consider the question whether the complaint states a cause of action. The appellant insists that facts sufficient are stated to
The respondent also contends that the suit was not brought in the proper county. This contention is not tenable, in view of the facts appearing upon the
We are of the opinion that the court erred in sustaining the demurrer. The judgment must be reversed, with costs, and the cause remanded, with directions to the court below to reinstate the case,.overrule the demurrer, and proceed according to law. It is so ordered.
Concurrence Opinion
(concurring), — As this is a transitory action, the venue was properly laid in the county *in which the defendant resides and was served with process, and the demurrer on the ground that the trial court had no jurisdiction of the subject-matter of the action, and that the complaint does not state facts sufficient to constitute a cause of action, was improperly sustained. I concur in the reversal of the judgment.